Lyttelton v Davison - [2018] NZHC 447

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000612 [2018] NZHC 447

BETWEEN
MARTIN VICTOR LYTTELTON

Plaintiff

AND

PAUL JOSEPH DAVISON QC

First Defendant

AND

MINTER ELLISON RUDD WATTS

Second Defendant

AND

AARON J LLOYD

Third Defendant

AND

CATHY A QUINN

Fourth Defendant

Hearing: On the papers

Counsel:

Plaintiff - self represented

P R Rzepecky for the First Defendant
S Grieve QC and M C Harris for the Second, Third and Fourth Defendants

Judgment:

15 March 2018

JUDGMENT OF NATION J AS TO COSTS

[1] In a judgment of 24 July 2017, I struck out civil proceedings filed by Mr Lyttelton against the abovenamed defendants. I held:

(a) There were significant defects in the form of the pleadings.

LYTTELTON v DAVISON [2018] NZHC 447 [15 March 2018]

(b) The claim in defamation was time-barred and there had been inadequate particulars. Even if Mr Lyttelton were to be successful in such a claim, he would not be entitled to anything other than nominal damages. His claim in defamation thus had no prospect of success and was an abuse of process.

(c) The statement of claim did not set out adequate particulars to sustain a claim based on fraud. All defendants had a limitation defence to that allegation. The allegations were so obviously without merit and of such a scandalous nature that the claim in this regard was an abuse of Court proceedings.

(d) The claims as to breach of fiduciary duty and withholding information were inadequately particularised and were an abuse of process.

(e) Claims of negligence were statute-barred.

(f) Mr Lyttelton claimed that Mr Davison QC had misled the Court and had been negligent in representing Mr Lyttelton on criminal charges. Mr Davison was engaged as counsel when Mr Lyttelton had pleaded guilty. The Court of Appeal had dealt with those claims when they heard Mr Lyttelton’s appeal against his original conviction. Given the decisions the Court of Appeal had reached and the evidence given by Mr Lyttelton on that appeal, it would have been an abuse of the Court process for those claims to have continued.

[2] I held the defendants were entitled to costs and directed counsel to file memoranda. The defendants filed memoranda seeking increased costs. Mr Lyttelton’s memorandum in response should have been filed by 25 August 2017. He failed to do so and purported to file a notice of appeal with the Court of Appeal on 21 August 2017. In a minute of 28 August 2017, I pointed out to Mr Lyttelton that his filing of a notice of appeal did not operate as a stay of the judgment already given and he must file a memorandum as to costs by 5 September 2017. I indicated that, if he failed to do so, I would deal with costs on the basis of the memoranda already filed for the defendants.

[3] I have now learnt that Mr Lyttelton’s appeal was not filed in a manner required…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lyttelton v Davison

Details

AGLC: Lyttelton v Davison [2018] NZHC 447
Case: [2018] NZHC 447
Decision Date: 15 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Martin Victor Lyttelton brought proceedings against Paul Joseph Davison QC, Minter Ellison Rudd Watts, Aaron J Lloyd and Cathy A Quinn. The plaintiff sought damages for defamation, fraud, breach of fiduciary duty, withholding information and negligence. In a previous judgment, the court struck out the proceedings. The plaintiff appealed to the Court of Appeal, but that appeal was not filed in the required manner and did not proceed. The court was required to determine the amount of costs to which the defendants were entitled. The plaintiff's strike-out application lacked merit, the claims were not adequately particularised, and the proceedings were an abuse of process. The first defendant was entitled to costs of $22,160.63 with a 50 per cent uplift and disbursements of $3,819.57, a total of $29,980.20. The second, third and fourth defendants were entitled to costs of $28,181.63 with a 50 per cent uplift and disbursements of $3,972.82, a total of $32,154.45. The court ordered the plaintiff to pay the defendants $62,134.65 in costs.

This case is a reminder that the courts will not hesitate to award costs on an increased basis where proceedings are brought without merit and are an abuse of process. The court will also take into account the need to protect the professional reputations of the defendants. The court's judgment highlights the importance of ensuring that proceedings are adequately particularised and that claims are brought within the relevant limitation periods. The court also emphasised the importance of filing costs memoranda in a timely manner and complying with the rules of court.

Orders